PERSPECTIVES
proving that the information was not lost,
but only temporarily unavailable.Retrieval
problems are common.
However, there are also problems with
storing something new.This usually occurs
simply because the person concerned is not
paying attention.But some people are unable
to store new information even if they are pay-
ing attention and have the opportunity to
repeat the new information over and over
again — several hours later, it is gone.Such
people,including patients with Alzheimer’s
disease, might not even complain about
‘losing their memory’because they do not
realize that anything is missing
1
.
More insidiously, memories can become
scrambled, sometimes in the process of
attempting to retrieve something.You might
relate a story to a friend but unwittingly
include some mistaken details.Later,as you
attempt to recall the episode, you might come
across your memory of the scrambled recall
attempt instead of your original memory.
Memory is malleable. It is not, as is com-
monly thought, like a museum piece sitting in
a display case.“Memory is,”as the Uruguayan
novelist Eduardo Galeano once said,“born
every day, springing from the past, and set
against it.”
2
Usually the scrambled memory does not
matter very much. But if you are an eye-
witness to a crime, your scrambled recall
could send someone to prison.And, rather
than feeling hesitant,you might feel perfectly
sure of the truth of your memory. The history
of the United States justice system,like those
of other countries, is littered with wrongful
convictions made on the basis of mistaken
memories
3
. Huff recently estimated
4
that
about 7,500 people arrested for serious crimes
were wrongly convicted in the United States
in 1999. He further noted that the rate is
thought to be much lower in Great Britain,
Canada,Australia,New Zealand and many
other nations, especially those that have
established procedures for reviewing cases
involving the potential of wrongful conviction.
Ronald Cotton,a North Carolina prisoner
who was convicted in 1986 of raping
a 22-year-old college student, Jennifer
Thompson, puts a human face on these
cases.Thompson stood up on the stand,put
her hand on the Bible and swore to tell the
truth. On the basis of her testimony,Cotton
was sentenced to prison for life.Eventually,
DNA testing — which began 11 years after
Thompson had first identified Cotton —
proved his innocence.Another man, Bobby
Poole,pleaded guilty to the crime
3
.
Faulty memory is not just about picking
the wrong person. Memory problems were
also evident during the sniper attacks that
killed ten people in the Washington DC area
in 2002 (see for example,
REF.5).Witnesses
reported seeing a white truck or van fleeing
several of the crime scenes. It seems that a
white vehicle might have been near one of the
first shootings and media repetition of this
information contaminated the memories of
witnesses to later attacks, making them more
likely to remember white trucks. When
caught, the sniper suspects were driving a blue
car.Were we observing unwitting memory
contamination on a nationwide scale?
Witnesses can be wrong for several rea-
sons.A key reason is that they pick up infor-
mation from other sources; they combine bits
of memory from different experiences. A
growing body of research shows that memory
more closely resembles a synthesis of experi-
ences than a replay of a videotape
6
.Three
decades ago,a method of studying memory
distortions was introduced.People watched a
simulated crime or accident.Later they were
given erroneous information about the details
The malleability of memory is becoming
increasingly clear. Many influences can cause
memories to change or even be created
anew, including our imaginations and the
leading questions or different recollections of
others. The knowledge that we cannot rely
on our memories, however compelling they
might be, leads to questions about the
validity of criminal convictions that are based
largely on the testimony of victims or
witnesses. Our scientific understanding of
memory should be used to help the legal
system to navigate this minefield.
Memories are precious.They give us identity.
They create a shared past that bonds us with
family and friends. They seem fixed,like con-
crete,so that if you ‘stepped’ on them they
would still be there as they always were.
But memories are not fixed. Everyday
experience tells us that they can be lost,but
they can also be drastically changed or even
created.Inaccurate memories can sometimes
be as compelling and ‘real’ as an accurate
memory.In this article, I discuss the ways in
which memories can be reshaped and their
implications for the legal system.If we cannot
believe our own memories, how can we know
whether the memories of a victim or a witness
are accurate?
Remaking memories
We are all familiar with temporary memory
problems.“I can’t remember the right word,”
says a colleague at a cocktail party. “Is it
senility?” I reply: “Can you remember the
word later?”And the usual answer will be yes,
NATURE REVIEWS | NEUROSCIENCE VOLUME 4 | MARCH 2003 | 231
Our changeable memories:
legal and practical implications
Elizabeth Loftus
SCIENCE AND SOCIETY
232 | MARCH 2003 | VOLUME 4 www.nature.com/reviews/neuro
PERSPECTIVES
even do this when induced to imagine the
experiences.Large changes in autobiography
can be achieved quickly. Attempts to distin-
guish the false memories from true ones have
occasionally shown statistical differences,such
as differences in confidence, vividness or
amount of detail
17
,or differences in lateralized
brain potentials
18,19
.For example,in the hot-
air balloon study
16
the real memories were
expressed with much more confidence than
the fake ones.In most studies, any differences
between true and false memories are observed
only when comparing large groups of true
and false memories, and these differences are
typically too small to be useful for classifying a
single autobiographical memory report as
true or false. Psychological science has not yet
developed a reliable way to classify memories
as true or false. Moreover, it should be kept in
mind that many false memories have been
expressed with great confidence.
Implications for society
While researchers continue to investigate false
memories, it is evident that there are already
lessons to be learned.The fact that the memo-
ries of victims and witnesses can be false or
inaccurate even though they believe them to
be true has important implications for the
legal system and for those who counsel or treat
victims of crimes.
Some psychotherapists use techniques that
are suggestive (along the lines of,“you don’t
remember sexual abuse, but you have the
symptoms, so let’s just imagine who might
have done it”).These can lead patients to false
beliefs and memories, causing great damage to
the patients themselves and to those who are
accused. In one Illinois case, psychiatrist
Bennett Braun was accused by his patient,
Patricia Burgus, of using drugs and hypnosis
to convince her that she possessed 300 person-
alities,ate meat loaf made of human flesh and
was a high priestess in a satanic cult
20
.By some
estimates, thousands of people have been
harmed in similar ways by well-meaning
providers who apply a ‘cure’ that ends up
being worse than the disease
21
.Law enforce-
ment interrogations that are suggestive can
lead witnesses to mistaken memories, even
ones that are detailed and expressed with con-
fidence. Hundreds of people have been
harmed by witnesses who made a mistake that
could have been avoided
22,23
.Of course,even
before the police arrive on the scene,witnesses
talk to one another and cross contamination
can occur. I personally witnessed this when I
entered a shop in Cambridge,Massachusetts,
moments after a robbery had occurred and
before the police arrived.In the immediate
aftermath,customers and employees shared
remembered about their encounter with Bugs
Bunny, 62% remembered shaking his hand
and 46% remembered hugging him. A few
people remembered touching his ears or tail.
One person remembered that he was holding
a carrot.The scenes described in the adver-
tisement never occurred,because Bugs Bunny
is a Warner Bros. cartoon character and
would not be featured at a Disney property.
Other ‘impossible’ memories have been
recently planted in British students
15
.The false
event was “having a nurse remove a skin sam-
ple from my little finger.”This medical proce-
dure was not one that was carried out in the
United Kingdom, according to extensive inves-
tigation of health policy records.After guided
imagination, many subjects came to remember
the non-existent procedure occurring in their
childhood.Some embellished their reported
memory with significant detail such as,“There
was a nurse and the place smelled horrible.”
One of the cleverest and most powerful
techniques for planting highly implausible
false memories involves the use of fake photo-
graphs
16
.Subjects were shown a falsified pho-
tograph that was made up of a real photograph
of the subject and a relative pasted into a proto-
type photograph of a hot-air balloon
(FIG.1).
Family members confirmed that the event had
never occurred.Subjects were shown the fake
photograph and asked to tell “everything you
can remember without leaving anything out,
no matter how trivial it may seem.”There were
two further interviews,and by the end of the
series 50% of the subjects had recalled,partially
or clearly, the fictitious hot-air balloon ride.
Some embellished their reports with sensory
details of a hot-air balloon ride during child-
hood that had never occurred.For example,
one subject said “I’m still pretty certain it
occurred when I was in sixth grade at, um,the
local school there … I’m pretty certain that
mum is down on the ground taking a photo.”
16
These studies,and many more like them,
show that people can develop beliefs and
memories for events that definitely did not
happen to them.They can do this when fed
strong suggestions — such as “your family
told us about this event”or “look at this pho-
tograph of you from childhood”. They can
of the event,such as the false detail that a man
had curly rather than straight hair. Many of
these people later claimed that they had seen a
curly-haired person
7
. Studies such as this
showed how leading questions or other forms
of misinformation could contaminate the
memories of witnesses about events that they
had recently experienced
8
.
In the past decade, the challenges have
become greater. Newer studies showed that
you could do more than change a detail here
and there in someone’s memory.You could
actually make people believe that a childhood
experience had occurred when in fact it never
happened.Examples include being lost in a
shopping mall for an extended period of time,
being rescued by a lifeguard, or surviving a
vicious animal attack
9–12
.How is this possible?
In our studies,we enlist family members to
help us to persuade their relatives that the
events occurred.This method has led about a
quarter of our subjects to believe that they
were lost in a shopping mall for an extended
period of time,and were ultimately rescued by
an elderly person and reunited with their fam-
ilies.In other studies,we engaged people in
guided imagination exercises.We asked people
to imagine for a minute that as a child they
had tripped and broken a window with their
hand.Later, many of them became confident
that the event had occurred.In other studies,
we encouraged people to read stories and tes-
timonials about witnessing demonic posses-
sion,and even these raised confidence that this
rather implausible event had happened.
One recurring issue for memory distor-
tion research is the question of whether the
events being reported after such a manipula-
tion might have actually happened.Perhaps
the subject did break a window but had for-
gotten about it — the imagination exercise
might have triggered a true memory rather
than planting a false one.To prove that false
memories can be insinuated into memory by
these suggestive techniques,researchers have
tried to plant memories that would be highly
implausible or impossible.For example, one
set of studies asked people to evaluate adver-
tising copy. They were shown a fake print
advertisement that described a visit to
Disneyland and how they met and shook
hands with Bugs Bunny.Later, 16% of these
subjects said that they remembered meeting
and shaking hands with Bugs Bunny
13
.In fol-
low-up research carried out by Grinley in my
laboratory, several presentations of fake
advertisments involving Bugs Bunny at
Disneyland resulted in 25–35% of subjects
claiming to have met Bugs Bunny
14
.
Moreover, when these subjects were subse-
quently asked to report precisely what they
“One of the cleverest and
most powerful techniques for
planting highly implausible
false memories involves the
use of fake photographs.”
PERSPECTIVES
second trial,and helped to secure his acquittal.
Beard later filed a civil lawsuit,and eventually
received a settlement of nearly US$2 million in
his case against state and county police
26
.
This list of potential venues for education
about the nature of memory represents just
one proposal for a possible programme for
action.Some legislative remedies might also
be called for, especially in the most serious
cases that can result in a sentence of death.
Recently, the Innocence Protection Act was
introduced in the United States Congress.It
has two useful elements: access to DNA testing
for convicted people and improvement in the
quality of lawyers who try death penalty cases.
Better lawyers might be better acquainted with
the problems of memory and how to educate
judges and jurors about these problems.
Congress will be considering this legislation
again in 2003
(REF. 27).
The American Judicature Society proposed
the creation of an ‘innocence commission’that
would study why the legal system has failed in
known cases of wrongful conviction.After all,
look what the National Transportation Safety
Board does when a plane crashes.Few expenses
are spared as every aspect of the crash is exam-
ined.Not long ago, I proposed an analogous
‘National Memory Safety Board’that might
concentrate specifically on memory problems
that have led to injustice
28
.If the travesties of
the past few decades were thoroughly exam-
ined side-by-side with scientific knowledge on
memory,we would all benefit. It would be too
late for the family of Steve Titus,who died of a
heart attack at the age of 35 after being falsely
convicted of rape. It would be too late for the
many death row prisoners who have recently
been exonerated by DNA evidence. It would be
too late for the scores of innocent defendants
who have had to face civil litigation over false
claims of satanic ritual abuse and other dubi-
ous charges.But it might be in time to keep us
from searching for that next white van that
does not exist because someone inadvertently
planted a false memory.
To reiterate the main points: memory is
more prone to error than many people real-
ize.Our memory system can be infused with
compelling illusory memories of important
events.These grand memory errors have con-
tributed to injustices that could have been
avoided or minimized.As a start, I suggest
that we all remember an important truth
about the mind — paraphrasing Galeano:
memory is born anew every day.
Elizabeth Loftus is at
2393 Social Ecology II, University of California,
Irvine, California 92697-7085, USA.
e-mail: [email protected]
doi:10.1038/nrn1054
their recollections,providing fuel for influenc-
ing the thoughts of one another. This is why,
during the Washington DC area sniper attacks
in 2002, law enforcement officials advised
members of the public who might witness the
‘next attack’ to write down what they saw
immediately,even using their hand if they did
not have paper. Good advice,but I would sug-
gest having paper handy because the best
course of action is to write down everything
that can be remembered before witnesses are
interrogated or talk to one another. This activ-
ity strengthens the memory and protects it to
some extent from later contamination
24
.
It is often argued that a few false accusations
are just the cost of doing business. But this cost
includes the potential for the actual perpetra-
tor to commit more crimes,and for the tax-
payer to have to pay sizable sums of money in
compensation when wrongful convictions are
exposed (which probably happens in only a
fraction of cases). Although the defendants in
most wrongful prosecution cases are govern-
ment officials or organizations,in one recent
case the witness with mistaken memory was
successfully sued
25
.Donna Parmeter, a former
prison guard,was charged with kidnapping,
robbery and torture. She had been identified
by the victim,Peter Kretzu,who was tied up,
blindfolded and tortured by two masked rob-
bers.Although the attackers wore ski masks,
Kretzu claimed that he recognized Donna
(from her voice and eyes) and her husband
Joseph (from his breathing, laugh,body shape
and ‘chicken soup’body odour). Kretzu was
100% certain. Donna was eventually exoner-
ated when investigators substantiated her alibi.
But she had spent a month in jail,and she later
sued,eventually winning a US$100,000 civil
judgement against Kretzu.In the past,mistaken
witnesses simply went their own ways,although
there are a few known instances in which they
have made profound apologies to those whom
they had falsely accused.Will we now see more
cases in which mistaken witnesses end up
paying financially for their mistakes?
Although much of the research has focused
on wrongful convictions, there is another side
to the criminal justice coin.Memory distor-
tions can also contribute to failures to convict
a guilty person, not because an innocent per-
son is convicted in their place, but because
accurate witness testimony can be under-
mined.If witnesses misremember some detail,
or they are told that their stories conflict with
other evidence, they might discount their tes-
timony and be less persuasive than perhaps
they should be, or the jury might consider
their entire testimony to be unreliable.
Scientific research into memory has the
potential to minimize these kinds of problem.
Information from psychological scientists
(and perhaps neuroscientists) could help to
keep the people in power from making deci-
sions on the basis of myths or misconceptions
about memory.Scientific knowledge could be
shared with relevant individuals in many
ways: through workshops for mental health
professionals,training for police,seminars for
lawyers and judges, judicial instructions or
expert testimony for jurors.In one example,
Jacob Beard of West Virginia was wrongly
convicted of murdering two women and spent
many years in prison. He managed to win a
second trial. Expert testimony on suggestion
and false memory was presented in that
NATURE REVIEWS | NEUROSCIENCE VOLUME 4 | MARCH 2003 | 233
Figure 1 | An example of a composite photograph of a hot-air balloon flight. The photograph on the
left was used to create a misleading image (right) that could lead the subject to ‘remember’ a hot-air
balloon flight as a child even when the experience had never occurred. Reproduced, with permission, from
REF. 16 © (2002) Psychonomic Society.
234 | MARCH 2003 | VOLUME 4 www.nature.com/reviews/neuro
PERSPECTIVES
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Acknowledgement
I thank the neurophysiologist W. Calvin, for provocative
discussions about these issues and general guidance.
Online links
FURTHER INFORMATION
Elizabeth Loftus’s homepage:
http://www.seweb.uci.edu/faculty/loftus/
Encyclopedia of Life Sciences: http:www.els.net/
Alzheimer disease | learning and memory
Access to this interactive links box is free online.
